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Opinion: Wrongful Commitment

Poli Psy


Published January 18, 2006 at 5:00 p.m.

On January 4, Vermont District Court Judge Edward Cashman sentenced Mark Hulett to the minimum: 60 days in jail, probation predicated on compliance with 21 conditions, including participation in community-based treatment. Hulett, 34, had pled guilty to two counts of sexual assault of a friend's daughter when she was 6 to 10 years old.

Defending his decision, the judge explained that Hulett was assessed at low risk of re-offending and was not going to get treatment in jail. Cashman thought Hulett needed treatment more than lengthy incarceration, which would only make him more dangerous. Then the judge averred that he no longer believes in punishment. "Anger corrodes the soul," he said.

Although none of the critics knows exactly what Hulett did or how often he did it, Cashman was besieged by condemnation. Calls poured into Montpelier. Gov. Jim Douglas issued a statement eviscerating Cashman and calling for sentencing reform. Republican legislators resolved to impeach the judge.

By Friday, the national conservative media and blogosphere had joined the mob. Bill O'Reilly dubbed Cashman "the worst judge in the USA." A blog called Imago Dei pointed to Cashman, a devout Catholic, as "proof of the existence of evil." A contributor to the Wall Street Journal's opinion site called him proof that Vermont is insane.

On Vermont Public Radio's "Switchboard," Democratic House Speaker Gaye Symington declared that "as a mother and a citizen," she, too, was appalled by Cashman's decision. She plugged the House's forthcoming Safe Communities bill, which may contain longer sentences for sex offenders.

It's hard to say how news of the Hulett case got out. But you can't understand its resonance without considering the mega-decibel amplifier created by Douglas's two-year campaign to get tough on sex offenders.

What the governor wants most is a law allowing "civil commitment" of "sexually violent predators" -- the indefinite psychiatric incarceration of people who have completed their prison sentences but are deemed likely to commit another crime. Among his other wishes are longer sentences and tighter probationary restrictions; posting more ex-offenders on the Sex Offender Registry website and availing the public of their addresses.

None of this is a response to a real problem. Rather, it's a strategy to embarrass "soft-on-crime" Democrats and win votes for Republicans. After all, Vermont ranks 48th among the states in crime, 44th in rapes. As for sex crimes against children, thanks to good treatment programs, we have some of the lowest re-offense rates in the country: In 1995, Vermont reported after-treatment arrests at 7 percent for pedophiles, 3 percent for incest perpetrators, and 3 percent for those who had committed "hands-off" crimes such as exhibitionism.

Nevertheless, last session the lawmakers passed a Sexually Violent Predator designation, ready for deployment should civil commitment become law. And the speaker promises more. Fear, both public and political, is winning the day.

But if fear is the greatest political motivator, it is also the worst basis for policy. A tougher sex-offender law will not make Vermont's communities safer. Indeed, it could make them more dangerous. Here's why:

1. Such laws put resources where the problem isn't. All but about 7 percent of sex crimes against children are committed by Dad, Mom's boyfriend or a close family friend. Sex offender registries do nothing for these victims, who already know where the released perpetrator is. Requirements that ex-offenders stay away from schools and playgrounds are likewise unnecessary. Where molestation is concerned, kids are safest in public.

2. Sex criminals reform, and treatment works. Even for people who have committed many crimes, the one they're caught in is usually the last. Large studies in the U.S. and Canada have found that about 13 percent of sex offenders are rearrested for similar crimes, compared with 74 percent of all other prisoners. "Being handcuffed and hauled away from decent society is a shattering experience for anyone," an ex-offender told Eric Lotke, former research and policy director of the Justice Policy Institute. "But it is all the more electrifying and soul-stripping when the offense is as intimate and shameful a secret as is a sex crime." That memory "stops most of us from ever doing it again."

Treatment improves the odds greatly, as Vermont's low recidivism proves.

3. In a free society, you don't lock people up for crimes you think they might commit. Anyway, it's almost impossible to know.

Not to worry, says the guv. Only the baddest of the bad -- 19 ex-cons, tops -- will end up in the bin. But most states have exceeded their estimates by hundreds, even thousands, using civil commitment as a backdoor to longer sentences.

Vermont's new statute sounds reassuringly stringent. "The standard of proof . . . shall be clear and convincing evidence that the convicted sex offender suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory, sexually violent offenses."

Such risk prediction, though, is anything but clear and convincing. Notwithstanding its definition in psychiatry's Diagnostic and Statistical Manual, "personality disorder" is a diagnosis about as precise as "a real fruitcake." A "mental abnormality" is as common as anorexia. And depending on whom you talk to, "pedophilia" can refer to a 40-year-old who rapes a toddler or an 8-year-old playing doctor with his 5-year-old sister.

Before committing a prisoner, courts usually ask, "Did he cooperate with treatment in prison? Does he show remorse?" According to Canadian Solicitor General Karl Hanson, who conducted the widest, most sophisticated analysis yet of recidivism risks, neither of these says a lot about an offender's future behavior.

One thing that does predict re-offense, Hanson finds, is youth: a person under 25 is far more likely to assault someone than an older person, and the compulsion lessens with age. Thus, very long prison sentences, even as an alternative to civil commitment, are a bad idea relocated -- a waste of money, and lives.

4. Expanded sex-offender registries and tougher restrictions contribute to re-offense.

"The treatment research shows that the best way to [change antisocial behavior] is to normalize life," says Lotke. Offender websites and community notification of neighbors, landlords and employers, coupled with requirements that registrants report their every move to the police, do the opposite. The U.S. Justice Department names "lifestyle instability" as a big contributor to re-offending.

In other words, as Robert Longo, a therapist and former director of Vermont's Safer Society Program, told me, "You ban somebody from the community, he has no friends, he feels bad about himself, and you reinforce the very problems that contribute to the sex abuse behavior in the first place. You make him a better sex offender."

5. Community notification encourages violence.

"Stronger sex offender laws give tools to parents and concerned citizens so they can be more aware of the location of convicted sex offenders, especially sexually violent predators," Douglas proclaims.

And what are we to do with these "tools?" Gather the good old boys to patrol the offender's place with shotguns? That's what's happened nationwide: harassment, assault, arson. Margy Love, former Justice Department Pardon Attorney, calls the new nationwide sex-offender registry an "incitement to vigilante justice" masquerading as "a responsible public safety measure."

Imprisonment does two things: It punishes, and it protects the community by keeping bad guys off the street. A third function, in Vermont at least, is rehabilitation, which protects the community by helping ex-convicts create lives beyond crime. Commenting on the Hulett case, Corrections Commissioner Rob Hofmann suggested that punishment and rehabilitation are mutually reinforcing. Time behind bars, he told the Free Press, pushes offenders "to contemplate the pain [they] have caused the victim."

Judge Cashman, reputedly more for harshness than leniency, seems to be grappling with the fact that prisons are rarely conducive to salutary contemplation.

If Vermont wants to solve real problems, it will keep doing what it already does: Educate the public about sexual violence; tailor sentences to the severity of the crime and the dangerousness of the criminal; encourage treatment in prison; improve prisoners' reentry into family and community, with housing, job training, counseling and supervision.

But offender websites and civil commitment are not about safety. They are about vengeance. And votes.

The experience of other states foretells Vermont's. Prison sentences and registries grow longer. The cellblocks fill, along with the locked wards. The public perceives more crime; it demands more laws, criminalizing more acts. Broader laws bring more arrests, which look like more crime.

Conjuring monsters in the streets, communities are divided, while children are left defenseless at home. People feel falsely safer and, at the same time, more fearful.